Opinion
Case No. 117,229
11-25-2019
Donna Jo FLETCHER, Petitioner/Appellee, v. Mark Allen KELLEY, Respondent/Appellant.
N. Scott Johnson, Patrick H. McCord, N. SCOTT JOHNSON & ASSOCIATES, P.L.L.C., Tulsa, Oklahoma, For Petitioner/Appellee Carl P. Funderburk, FUNDERBURK AND ASSOCIATES, P.L.L.C., Tulsa, Oklahoma, For Respondent/Appellant
N. Scott Johnson, Patrick H. McCord, N. SCOTT JOHNSON & ASSOCIATES, P.L.L.C., Tulsa, Oklahoma, For Petitioner/Appellee
Carl P. Funderburk, FUNDERBURK AND ASSOCIATES, P.L.L.C., Tulsa, Oklahoma, For Respondent/Appellant
OPINION BY JANE P. WISEMAN, VICE-CHIEF JUDGE:
¶1 Mark Allen Kelley appeals a trial court order granting attorney fees and costs to Donna Jo Fletcher for matters arising after an order establishing paternity was entered. After review, we conclude there is a statutory basis for the attorney fee award and affirm the trial court's decision to award fees and costs, but reverse as to the amount and remand for further proceedings to determine the amount.
FACTS AND PROCEDURAL BACKGROUND
¶2 On November 18, 2014, a decree of paternity was filed that (1) established Kelley is the natural, biological father of CKF, (2) awarded Fletcher sole custody of CKF, (3) awarded Kelley visitation each Tuesday and Thursday from 4:00 p.m. to 7:30 p.m., alternating weekends from Saturday morning through Sunday afternoon, and alternating holidays, and (4) ordered Kelley to pay child support. The decree also provided, "If [Kelley] files a Motion to Modify and if the Court agrees that based upon all the circumstances that are available at that time, the court will consider [Kelley's] request with regard to modifications of custody or visitation." The court-ordered visitation to be monitored by either Carrie Short or another professional approved by Short to determine if CKF is adjusting to the new visitation schedule.
¶3 About a week later on November 26th, an order was filed reciting Kelley had agreed to pay Fletcher $5,000 for attorney fees, to be paid at $1,000 a month for 5 months, beginning in December 2014. The order states that Fletcher "agrees not to pursue the balance of the attorney's fees incurred by her in this matter, and shall not file an application with the Court."
¶4 On October 7, 2015, Fletcher filed a "Motion to Set Expedited Visitation Review Hearing" alleging "Short has issued a report regarding her monitoring of the minor child during the new visitation schedule, which reflects she has concerns about the minor child's development and adjustment to the current visitation schedule." According to an agreed order to modify visitation filed on February 10, 2016, the parties agreed Kelley should have visitation each Tuesday from 4:00 p.m. until 7:00 p.m., and alternating weekends from 10:00 a.m. Saturday until 2:00 p.m. Sunday. A review hearing was set for May 16, 2016.
¶5 Kelley filed a motion to modify child support in April 2016, claiming a modification was needed because he had been laid off from work.
¶6 On July 12, 2016, an "Order Adopting Recommendations of Carrie Short" was filed ordering Kelley to "continue working with his individual therapist to extinguish his animosity toward" Fletcher and setting out a detailed exchange protocol and other instructions. Three days later, Kelley filed a motion to replace Short as the visitation monitor alleging Short favors Fletcher and is biased against him.
¶7 On January 3, 2017, Kelley filed a motion to restore the previous court-ordered visitation schedule and Fletcher objected. The trial court denied Kelley's request to replace Short. An agreed order modifying child support was filed on April 17, 2017. ¶8 On May 23, 2017, Fletcher field an application for an emergency order to require therapeutic supervised visitation claiming Kelley's obstinate conduct necessitated supervised visitation. The trial court granted Fletcher's request for an emergency order, suspended the visitation schedule, and ordered any visitation by Kelley to be supervised by a professional at Rebound Mental Health. After a hearing, the trial court on July 11, 2017, continued supervision of Kelley's visitation at Rebound Mental Health or by another individual agreed to by the parties. On July 20, 2017, Kelley filed a motion for an expedited hearing to appoint a "therapeutic therapist" of his choosing.
¶9 Fletcher filed an application for attorney fees on July 31, 2017, seeking attorney fees and costs pursuant to 43 O.S. § 110. She alleged she incurred substantial attorney fees and costs in the amount of $17,197.87, plus additional fees and costs incurred at the hearing on the issue, due to Kelley's behavior and his numerous filings necessitating a response from her. The time records attached show Fletcher had incurred $17,197.87 in attorney fees and costs beginning December 9, 2014, a time period after the time—November 26, 2014—the parties had agreed on an amount of attorney fees for the paternity proceedings.
¶10 An order filed September 18, 2017, requires Dr. Bart Trentham to supervise Kelley's visitation and Carrie Short to remain as the child monitor. The order restrains and enjoins Kelley from contact with the minor child outside of therapeutic, supervised visitation.
¶11 On December 5, 2017, Kelley filed an application asking the trial court to appoint a public defender for CKF, alleging "Public defender is necessary do [sic ] to allegations of mother that father is harmful to child during exchanges per Carrie Short."
¶12 That same month, Fletcher filed an application to dismiss Kelley's application to alternate tax exemption claiming his application is deficient on its face as failing to comply with Rule 4 of the District Court Rules. Fletcher further claimed Kelley was behind on child support, he continues to pay the previous rate set by the court rather than the increased rate effective in January 2017, and he has failed to reimburse Fletcher for medical, therapy, and child care expenses. Fletcher filed a motion to dismiss Kelley's application for the appointment of a public defender for failure to comply with Rule 4. In the alternative, Fletcher denied that a public defender was necessary.
¶13 The trial court issued a series of orders ruling on the motions. In a document titled "Decision" filed on June 14, 2018, the trial court ordered Kelley to pay Fletcher $12,000 for attorney fees and costs. The trial court stated it "performed a judicial balancing of the equities" in reaching its decision. On June 14, 2018, the trial court ordered the appointment of a public defender for CKF. In a separate order, the trial court denied Kelley's application to alternate the tax exemption. In its later-filed order awarding attorney fees and costs, filed July 12, 2018, the court stated, "That the time period from December 9, 2014 to December 30, 2015, appears to involve a reasonable amount of time that either party should expect to be responsible for in this setting, particularly since the matter was concluded with an Agreed Order." The court continued: "After December 30, 2015, it appears things begin to deteriorate as multiple problems arose. [Kelley] filed several motions after the Application , including a request for the appointment of a Public Defender which the Court granted over [Fletcher's] objection." The court stated it "performed a judicial balancing of the equities" and awarded Fletcher a judgment against Kelley for $12,000, to be paid at the rate of $150 per month beginning in July 2018.
¶14 Kelley appeals from the order awarding attorney fees and costs to Fletcher.
STANDARD OF REVIEW
¶15 Kelley challenges the court's authority to make the award. "Whether a party has a right to recover a statutory attorney's fee is a legal question, and will be reviewed de novo by this Court." State ex rel. Dep't of Transp. v. Cedars Grp., L.L.C. , 2017 OK 12, ¶ 10, 393 P.3d 1095. ¶16 We also examine a question of statutory construction as a question of law requiring de novo review. Arrow Tool & Gauge v. Mead , 2000 OK 86, ¶ 6, 16 P.3d 1120.
ANALYSIS
¶17 "The rule that ‘each litigant bears the cost of his/her legal representation and our courts are without authority to assess and award attorney fees in the absence of a specific statute or a specific contract therefore between the parties’ is ‘firmly established in this jurisdiction.’ " Jones v. Pack , 2018 OK CIV APP 3, ¶ 15, 408 P.3d 628 (quoting Boatman v. Boatman , 2017 OK 27, ¶ 16, 404 P.3d 822 ). On appeal, Kelley asserts: "There was never a motion to modify filed to invoke the jurisdiction of the court nor ruled on in order to have a prevailing party to consider awarding attorney fees." He asserts the paternity order, filed on November 18, 2014, provides: "In accordance with law , if Father files a Motion to Modify and if the Court agrees that based upon all the circumstances that are available at that time, the court will consider Father's request with regard to modifications of custody or visitation." He claims the only motion to modify that has been filed was a motion to modify child support, which was resolved by an agreed order. He claims "there was never a proper filing to invoke the jurisdiction of the Court" and without "jurisdiction by the Court there can be no awarding of attorney fees." He asserts the trial court failed to make specific findings regarding the balancing of the equities. He further asserts 43 O.S. § 110(E) cannot be a basis for awarding attorney fees because this is a paternity action, not a dissolution of marriage action.
¶18 Title 43 O.S.2011 § 110(E) provides:
The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys.
He contends that "with no Motion to Modify being filed, there cannot be a prevailing party and therefore the awarding of attorney fees and costs should not have been granted." Although we agree with Kelley that § 110 is not applicable, the trial court did not lack jurisdiction to hear matters arising after the paternity determination, and other statutory grounds exist to award attorney fees and costs.
¶19 In McKiddy v. Alarkon , 2011 OK CIV APP 63, 254 P.3d 141, although the parties appeared to agree that § 110 applied to a request for attorney fees, the Court held that "because Father and Mother were never married and, hence, were never ‘grant[ed] a decree of dissolution of marriage, annulment of a marriage, or legal separation,’ § 110 is inapplicable to this case and cannot form the basis of an award of attorney's fees to Mother." Id. ¶¶ 14-15. The Court, however, quoted Dixon v. Bhuiyan , 2000 OK 56, ¶ 9, 10 P.3d 888, for the proposition: " ‘If the trial court reaches the correct result but for the wrong reason, its judgment is not subject to reversal. Rather th[is] Court is not bound by the trial court's reasoning and [we] may affirm the judgment below on a different legal rationale.’ " Id . ¶ 16. The Court found that other statutory provisions supported the award of attorney fees and affirmed the trial court's award to the mother. Id . ¶ 26.
¶20 Statutory authority exists for the award of attorney fees in a paternity case like this one. Title 10 O.S.2011 § 7700-636(C) provides that a trial court may award attorney fees and costs in paternity actions. Section 7700-636 states:
A. The court shall issue an order adjudicating whether a man alleged or claiming to be the father is the parent of the child.
B. An order adjudicating parentage shall identify the child by name and date of birth.
C. Except as otherwise provided in subsection D of this section, the court may assess filing fees, reasonable attorney fees, fees for genetic testing, other costs, and necessary travel and other reasonable expenses incurred in a proceeding under this Article. The court may award attorney
fees, which may be paid directly to the attorney, who may enforce the order in the attorney's own name.
10 O.S.2011 § 7700-636. The parties, however, had previously agreed to an attorney fee award for the proceedings to establish paternity. The fees at issue in this appeal were incurred during the post-establishment-of-paternity proceedings for issues involving visitation, child support, and related problems.
¶21 Title 43 O.S. Supp. 2019 § 109.2(B) provides that in an action to determine parentage, where the parties are the child's parents, "the court may determine which party should have custody of said children, may award child support to the parent to whom it awards custody, and may make an appropriate order for payment of costs and attorney fees." In Jones v. Pack , 2018 OK CIV APP 3, 408 P.3d 628, this Court considered whether a trial court appropriately awarded attorney fees when a father sought visitation when no visitation was provided in an agreed order establishing paternity and setting child support or in a subsequent order modifying the father's child support obligation. Id . ¶¶ 2-4. The mother filed a special appearance to object to the Oklahoma court's jurisdiction because she and the child were Arkansas residents. Id . ¶ 5. The trial court dismissed father's action due to lack of jurisdiction. Id . ¶ 6. The mother sought an award of attorney fees and costs saying the father should have filed his visitation request in Arkansas, and the trial court awarded mother $2,195 in attorney fees. Id . ¶¶ 7, 12.
¶22 This Court noted in Jones that attorney fees could not be awarded pursuant to 10 O.S.2011 § 7700-636 because the trial court was considering the father's request for visitation and the fees were not incurred to determine parentage. Id . ¶ 20. The Court also rejected an award of attorney fees pursuant to 43 O.S. Supp. 2016 § 109.2 as "no custody or child support decisions were made as a result of Father's petition to establish visitation." Id . ¶ 19. Here, however, unlike the trial court in Jones , the court issued an order regarding child support after the parentage and custody order was entered. We conclude that an award of attorney fees is supported by § 109.2.
¶23 At the attorney fee hearing, the attorneys for the parties stipulated to the hourly rate and the number of reasonable hours expended. However, the applicable statutory authority to award fees and costs, § 109.2, allows only fees and costs attributable to resolution of custody or child support issues. Although this appears to deviate from the broader attorney fee coverage provided by § 110 in post-decree dissolution of marriage issues, we conclude the statutory coverage of § 109.2 as to fees and costs in paternity cases applies only to issues of custody and child support. We are aware of no authority to award fees or costs falling outside these parameters established by the Legislature, and until this provision is changed legislatively, we are bound by the statute's clear language. "The primary goal of statutory interpretation is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed by the statutory language." Cattlemen's Steakhouse, Inc. v. Waldenville , 2013 OK 95, ¶ 14, 318 P.3d 1105. "If the language is plain and clearly expresses the legislative will, further inquiry is unnecessary." Id. "The Legislature has the power to change, alter, or amend a statute" and "[t]his Court may not, through judicial fiat, change, modify, or amend the expressed intent of the Legislature." White v. Lim , 2009 OK 79, ¶ 16, 224 P.3d 679. As a result, the amount of the award must be recalculated pursuant to the pertinent statutory authority. We thus reverse as to the amount and remand that issue to the trial court for re-examination.
CONCLUSION
¶24 We affirm the award of attorney fees and costs to Fletcher, but pursuant to 43 O.S. Supp. 2019 § 109.2, we reverse as to the amount and remand for the trial court to determine the appropriate amount consistent with this Opinion.
¶25 AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.
BARNES, P.J., and RAPP, J., concur.